Cosby v. Danziger

CONREY, P. J.

The defendant appeals from a judgment awarding to the plaintiff a sum representing the unpaid balance of the purchase price found to be due under a contract for the sale by plaintiff to defendant of a tract of land in the county of Kern. There is also an appeal from an order denying the defendant’s motion for a new trial.

The contract w*s executed on the twenty-eighth day of November, 1908. Part of the consideration was paid at that time and the remainder was due six months from the same date. The contract provided that “upon the payment of the balance of the purchase price said seller agrees to deliver to said buyer a good and sufficient deed of grant, bargain and sale, conveying said premises to said buyer free and clear of all encumbrances, and also to deliver to said buyer an abstract of title to said land, showing the title of said seller to said land to be free and. clear of all encumbrances. Said buyer hereby agrees to assume and pay the taxes on said property for the fiscal year 1908-9, and shall be entitled to immediate possession of said premises and to remove therefrom any mineral, oil, water, or other property.”

The court found that on the thirteenth day of December, 1911, the plaintiff tendered to defendant and offered to deliver to defendant a deed of grant, bargain, and sale, in the form provided in the contract, conveying the real property described in the contract, free and clear of all encumbrances; and at the same time tendered to defendant and offered to deliver to defendant an abstract of title, which abstract of title showed the title of plaintiff in and to said real property free and clear of all encumbrances; that defendant, at said time, did not specify any objection to the deed or to the abstract of title, or to the title of said real property; that the plaintiff' duly made renewal of the same offer in open court at the time: of the trial, upon condition that defendant would pay plaintiff the balance due and unpaid to plaintiff under said contract.

[206]

Appellant contends that the evidence does not support the findings of the court to the effect that the plaintiff tendered to defendant a deed accompanied by an abstract showing title to the premises in question vested in the plaintiff free and clear of any and all encumbrances. The abstract of title which was tendered by the plaintiff to the defendant shows that the instrument under which the plaintiff claims that legal title to the premises described in the contract became vested in him is a patent issued by the United States of America to Walter Cosby, dated June 7, 1905. A copy of this patent, exemplified under certificate of the recorder of the general land office at Washington, was recorded in the recorder’s office of Kern County, California, on the sixteenth day of November, 1910. Besides describing the property as the northeast quarter of section 24, etc. (being the same description as in the contract between plaintiff and defendant), the patent designated the property as being “that certain placer mining claim and premises known as the Black Goose placer mining claim.” The patent gránts “said mining premises,” etc., subject, nevertheless, to certain conditions and stipulations, one of which is as follows: “4. . . .